mapping the boundaries of government secrecy in Canada

THE RACE TOWARD TRANSPARENCY

Which federal opposition party is ahead in the race to promise an open government? (Photograph by Shutterstock.com)

THEY’RE THE CHAMPIONS? “The Liberals have announced the most robust plans for access reform so far in the marathon election campaign,” according to the Toronto Star.

But a reading of recent proposed amendments to the country’s freedom of information law introduced prior to the campaign suggest the NDP might actually do more to open up the federal government.

The outline of the Liberal plan for access reform was first sketched out in party leader Justin Trudeau’s proposed Transparency Act, which was introduced in June 2014.

As I wrote earlier, that bill included laudable proposals such as eliminating fees for access requests and giving the information commissioner the power to order the release of records the government has denied access to.

But, despite what National Newswatch columnist Don Lenihan seems to believe, the bill’s text did little to fulfill Trudeau’s promise to make all government records “open by default.”

After all, according to information commissioner Suzanne Legault, that’s the way the Access to Information Act is already written.

But there are so many exceptions to that rule in the law that government has instead become secret by default.

The Transparency Act didn’t lay a hand on those exceptions and, in an earlier interview with me, the party’s open government critic Scott Simms repeatedly confirmed the Liberals are comfortable with them.

“I wouldn’t want to say this is exhaustive, it’s perfect, it’s fine, it’s just a matter of how you are applying it. But I think, for the most part, what frustrates Canadians is how the [exemptions and exclusions] are applied,” he said, later adding he wouldn’t want to endorse all of the exceptions.

Such a statement does not exactly inspire confidence in the Liberal’s commitment to openness.

By comparison, in Jan. 2015, NDP MP Pat Martin introduced a reform bill that would have explicitly provided greater (albeit not unrestricted) access to cabinet and policy advice records.

That’s important because the exceptions to making those records public are among the most abused and frustrating provisions in the Access to Information Act.

Martin’s bill wouldn’t have eliminated any of the fees associated with using that legislation.

But it would have given the commissioner order-making power, as well as requiring public officials to create records that “document their decisions, actions, advice, recommendations and deliberations.”

Martin’s bill would have also made all public bodies subject to the Access to Information Act, with a requirement to disclose any record if the “public interest in disclosure clearly outweighs in importance the need for secrecy.”

Again, that’s a more robust proposal than the one put forward by the Liberals in their election platform, which merely promises to make the “Prime Minister’s and Ministers’ Offices, as well as administrative institutions that support Parliament and the courts” subject to the Act.

And it’s worthwhile remembering Martin — who has been introducing bills to reform records access since 2005 — isn’t the NDP’s only prominent right to know advocate.

The MP who seconded Martin’s most recent reform effort, Murray Rankin, helped draft British Columbia’s freedom of information law and was an early promoter of such legislation federally, having written a research study on the subject in 1977 for the Canadian Bar Association.

That being said, the NDP hasn’t yet laid down a government transparency policy plank, with the party telling the Toronto Star it will have something to say on the issue before Election Day.

So, despite Rankin and Martin’s presence, it’s possible the NDP will retreat from its past proclamations now that they could win the election.

The reason: most opposition parties become considerably less enthusiastic about freedom of information once they form government.

But, until Canadians know one way or another, it’s too early to declare the Liberals champions of our information rights.

SEEING GREEN? If you’re wondering, neither Green Leader Elizabeth May or her parliamentary colleague Bruce Hyer have introduced private member’s bills that would reform the Access to Information Act. The party’s election platform, however, does promise to “overhaul” that law, without providing further details.

TAKING ACTION ON REDACTION Journalists have increasingly been using the term redaction to describe what happens when public bodies remove information from records requested under Canada’s freedom of information laws. But is there a better word they could be using to explain what’s happening?

According to the Canadian Newsstand database, in 2006 there were at least four stories published where that term appeared along with the words freedom of information request, access to information request or right to information request. Nine years later, there were at least 93 such stories.

But when public bodies redact information, they are actually censoring it — something the New Brunswick government acknowledges in its recent review of that province’s access legislation.

So shouldn’t journalists just write that instead?

Number of stories about record requests that include the term redaction*

2014 – 93

2013 – 54

2012 – 47

2011 – 44

2010 – 35

2009 – 23

2008 – 11

2007 – 6

2006 – 4

* = To find those stories, I used the following search string: (“freedom of information request” OR “access to information request” OR “right to information request” OR “FOI request” OR “FOIP request” OR “ATI request” OR “ATIP request” OR “RTI request”) AND redact*

MIA ON RTK The Harper administration’s secrecy has been making headlines across the country, something that should mean more public interest in this year’s Right to Know Week events. But, unfortunately, Canada’s information commissioner won’t be part of any of them.

That’s because, according to a spokesperson from the commissioner’s office, “As a non-partisan Agent of Parliament, that the Commissioner has decided that she and her Office will not participate in events during the federal election period.”

• iPolitics reports former Conservative nomination candidates risk losing a $1,000 “Good Conduct Bond” if they publicly criticize the party or its hopefuls during the election.

• The Montreal Gazette has published a helpful primer on how to use Quebec and Canada’s freedom of information laws to “peek into government files.”

• Unmuzzle Canada, a “grassroots group of people” concerned about the federal government’s “increasingly restrictive communications policies” have launched a petition campaign to end the gagging of scientists, ambassadors, librarians and MPs. They are also encouraging supporters to pose with duct tape and share photos of how that hardware is supposed to be used, as well as send actual rolls of duct tape to Ottawa.

• BuzzFeed Canada’s Ishmael Daro writes that, nine moths after requesting information about @Canada’s first tweet, he’s finally received a response from the federal government. But, as a result of that delay, “I can’t even pretend it’s newsworthy at this point.” (hat tip: Sherwin Arnott)

• CBC News’s Dean Beeby tweets that five surveys ordered by the Harper administration, paid for by Canadians, have been blacked out under the Access to Information Act. What’s there to hide, he asks?

SQUIBS (PROVINCIAL)

• The Telegraph-Journal’s editorial board comes out against the New Brunswick government’s plan to consider proposals that would make it more difficult to request records in that province. The board writes, “This information belongs to the public — the bureaucracy are merely caretakers. The public deserves reasonable access.”

• After a two-year fight, the Telegraph-Journal has obtained details of inspections at daycares, which had previously been kept secret by the New Brunswick government. But two daycares are trying to keep their inspection reports private.

• A woman who was previously banned from visiting the continuing care centre where her parents reside has said Alberta Health Services shredded records about that decision. According to the Edmonton Journal, she had asked for those records under the province’s freedom of information legislation.

• A Winnipeg man, who has accused the Winnipeg Police Service and Province of Manitoba of using secret records to stop his bid to be a foster parent, says his requests to see the incriminating information were denied under the province’s freedom of information law. The Winnipeg Free Press quotes the man as saying, “They put this black mark on your file, but then there’s no checks or balances in place so you can go and fight it.”

• Deirdre Wade, the former chair of the Canadian Bar Association’s National Privacy and Access Law Section, has criticized a recommendation by New Brunswick information commissioner that her office should have the power to review cases where the provincial government has claimed solicitor-client privilege to prevent the release of information under its records access law.

• The Vancouver Sun’s data journalism specialist Chad Skelton is leaving the paper. In a posting on his blog, Skelton writes he’s taken a buyout offer to mainly “pursue my other great passion: teaching. Both at Kwantlen [Polytechnic University], where I’ve been a part-time faculty member for the past decade, and through my own data visualization training workshops. I’ll also be looking for other opportunities to put my data and storytelling skills to use.”

• The Lloydminster Source reports, “The Saskatchewan NDP party joined forces with the privacy commissioner to demand stronger legislation after the Office of the Premier released private information about a whistleblower who went public about poor conditions at a seniors home where he was employed.”

• Describing freedom of information legislation as a “pillar of democracy,” the Canadian Centre for Policy Alternative’s Keith Reynolds writes in Rabble.ca that, over the years, its base has been “chipped away” in Canada. That’s why Reynolds is encouraging British Columbians to take part in the current review of the province’s version of that law.

SQUIBS (LOCAL)

• “A group of students from McGill University says the university continues to stymie their efforts to uncover what goes on in certain research labs and is going to great lengths and expense to try to block students from accessing information about its military ties,” reports the Montreal Gazette.

• The Canadian Press reports, “Days before Toronto must decide whether to bid for the 2024 Summer Olympics, critics are sounding the alarm over what they call unprecedented secrecy surrounding the process.” (hat tip: Ian Bron)

• The City of Brandon, Man.’s poverty committee has, according to the community’s daily newspaper, “submitted a report asking for council’s support in reinstating the national long-form census, which was abolished by the federal government in 2010.

• Alberta’s information commissioner has decided the Town of Ponoka no longer needs to respond to freedom of information requests about a local improvement project. The reason: according to the town’s paper, after responding to three earlier requests, the commissioner found the remainder filed with the town “are repetitious and of a systematic nature.”

Have a news tip about about the state of democracy, openness and accountability in Canada? You can email me at this address.

“Murray Rankin, helped draft British Columbia’s freedom of information law.”
I’m not so sure the state of BC’s Freedom of Information and Protection of Privacy Act (FOIPPA) is anything that should be emulated. It seems the FOI bit is often surreptitiously trumped/redacted/bowdlerized/censored by the PPA bit.

ABOUT THE AUTHOR

Sean Holman is an associate professor of journalism at Mount Royal University in Calgary and a freedom of information researcher. A former investigative journalist covering British Columbia politics, Holman is now pursuing a doctorate at the University of Birmingham where he is writing a dissertation on the history of the federal government’s Access to Information Act. READ MORE

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"...at the beginning of the twenty-first century, we find ourselves residents of an unknowable country. It is a nation of the governed rather than the self-governed – a place where transparency is routinely sacrificed on the high altar of peace, order and what some would call good governance." READ MORE

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